In re M.R.C.

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No. 101,892


IN THE COURT OF APPEALS OF THE STATE OF KANSAS


In the Matter of M.R.C., a Minor.



SYLLABUS BY THE COURT

1.
An appellate court reviews the district court's decision terminating a person's
parental rights to determine if, after reviewing all the evidence in the light most favorable
to the prevailing party, the district court's factual findings were highly probable, i.e.,
supported by clear and convincing evidence. In making this determination, an appellate
court does not weigh conflicting evidence, pass on the credibility of witnesses, or
redetermine questions of fact.

2.
The burden is on the petitioner to prove grounds for termination of a father's
parental rights under K.S.A. 2008 Supp. 59-2136(h).




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3.
The biological father has an affirmative duty to provide support for the mother
during the 6 months prior to the child's birth, and the father can fulfill this duty without
having contact with the mother.

4.
Under the facts of this case, the district court's decision to terminate the biological
father's parental rights pursuant to K.S.A. 2008 Supp. 59-2136(h)(1)(D) was supported by
clear and convincing evidence.

Appeal from Sedgwick District Court; RICHARD T. BALLINGER, judge.
Opinion filed October 2, 2009. Affirmed.

Michael J. Studtmann, of Law Office of Michael J. Studtmann, P.A., of Wichita,
for appellant natural father.

Richard A. Macias, of Wichita, for appellee Adoption Centre of Kansas, Inc.

Before MALONE, P.J., PIERRON and LEBEN, JJ.


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MALONE, J.: E.L.T., the biological father of M.R.C., appeals the district court's
decision terminating his parental rights in this adoption case. The only issue is whether
the district court erred in terminating E.L.T.'s parental rights pursuant to K.S.A. 2008
Supp. 59-2136(h)(1)(D) for failing without reasonable cause to provide support for
M.S.C., the biological mother, during the 6 months prior to M.R.C.'s birth. We conclude
the district court's decision to terminate E.L.T.'s parental rights was supported by clear
and convincing evidence.

M.S.C. and E.L.T. are the unwed, biological parents of M.R.C., born May 5, 2008.
They had a tumultuous relationship beginning in 2002 when they conceived another child,
R.T., who was born on October 4, 2002. M.S.C. was involved in another relationship at
the time of R.T.'s birth, and she initially informed E.L.T. that she had miscarried R.T. A
year later, E.L.T. learned for the first time that M.S.C. had not miscarried R.T. Upon
learning of the child, E.L.T. filed a paternity action and obtained visitation rights with
R.T. Over the next few years, M.S.C. and E.L.T. had an on-again off-again relationship.

On March 22, 2007, E.L.T. filed a motion in the paternity case to change the
custody of R.T. After M.S.C. failed to appear, the district court granted E.L.T.'s motion.
M.S.C. later denied receiving notice of the change of custody motion. E.L.T. admitted
that in spite of the signed certificate of service attached to his motion, he did not mail
notice of the hearing to M.S.C. Instead, he asked his sister to hand deliver the service,

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but the record does not reflect that she did so. E.L.T. contacted M.S.C. after he obtained
the change of custody order. According to M.S.C., E.L.T. informed her that she had
"lost her rights" to R.T., but if she moved back in with him, he would restore her parental
rights.

M.S.C. moved in with E.L.T. in August 2007, and their relationship began to
improve. In September 2007, M.S.C. learned that she was pregnant and she informed
E.L.T. of the pregnancy. While they lived together, E.L.T. paid for the food, rent,
utilities, gas, and babysitting costs. E.L.T. purchased prenatal vitamins for M.S.C., and
he took her to the hospital for treatment at least once in November 2007.

By December 2007, however, the relationship began to fall apart again. M.S.C.
had informed E.L.T. that she did not want to have sex because she was worried about
some bleeding associated with the pregnancy. According to M.S.C., one night after she
took prescription sleep medication that E.L.T. had given her, she fell into a deep sleep but
awoke to find E.L.T. having sex with her. On December 10, 2007, M.S.C. and E.L.T.
had a fight in which they pushed each other and E.L.T. destroyed some personal property.
Following the fight, M.S.C. told E.L.T. that she was leaving him and departed from the
residence. Later that night, M.S.C. returned to the residence to get her clothes, and she
found that E.L.T. had attempted suicide. M.S.C. immediately called an ambulance, and

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E.L.T. was hospitalized for 2 to 3 days. Nevertheless, according to M.S.C., E.L.T.
placed several harassing and threatening phone calls from the hospital.

On December 31, 2007, M.S.C. filed for a protection from abuse (PFA) order. In
support of the order, she cited the December 10, 2007, fight which had involved physical
contact and the harassing phone calls. The district court issued a final PFA order on
January 10, 2008, prohibiting E.L.T. from having any contact with M.S.C.

After M.S.C. left E.L.T. on December 10, 2007, E.L.T. did not provide any money
to M.S.C. even though he knew she was unemployed. E.L.T. did not establish a bank
account in M.S.C.'s name, and he did not try to get money to her through friends or
family. E.L.T. had worked for the same towing company for 7 years, and depending on
his commissions, he earned between $38,000 and $42,000 annually. E.L.T. was earning
approximately $3,000 per month in the spring of 2008, and in February 2008, he received
an income tax refund of over $3,000. M.S.C. never told E.L.T. that she did not want any
support from him.

M.S.C., who still believed E.L.T. had terminated her rights to R.T., did not have
any contact with R.T. after she left the residence on December 10, 2007. However,
during the spring of 2008, E.L.T. took R.T. for regular visits with M.S.C.'s family,
typically every other weekend. In mid-March, M.S.C.'s friend Jamie encountered E.L.T.

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at a flea market. Jamie told E.L.T. that M.S.C. had miscarried. Jamie later told M.S.C.
she had lied to E.L.T. so that M.S.C. could have a "peaceful" pregnancy. M.S.C. never
tried to contact E.L.T. to tell him she had not miscarried. When E.L.T. told his sister
about the miscarriage, she warned him not to believe the news because M.S.C. had lied
about a miscarriage during her pregnancy with R.T. Nevertheless, E.L.T. never made
any attempts to confirm whether M.S.C. was still pregnant.

M.S.C. gave birth to M.R.C. on May 5, 2008, in Sedgwick County, Kansas.
Shortly thereafter, M.S.C. relinquished her parental rights to Adoption Centre of Kansas,
Inc. (Adoption Centre). Adoption Centre provided notice of M.R.C.'s birth to E.L.T. on
May 7, 2008. On May 21, 2008, Adoption Centre filed a petition for termination of
E.L.T.'s parental rights. In the petition, Adoption Centre alleged that E.L.T. had failed to
provide support for M.S.C. during the 6 months prior to M.R.C.'s birth despite having
knowledge of the pregnancy. E.L.T. filed an answer to Adoption Centre's petition and
admitted that he was M.R.C.'s father. However, E.L.T. denied that he had failed without
reasonable cause to provide support for M.S.C. during the 6 months prior to M.R.C.'s
birth. Instead, E.L.T. asserted that M.S.C. had a PFA order against him prohibiting
contact between the parties. E.L.T. also claimed that M.S.C. had misled him into
believing that she had miscarried M.R.C.


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The district court held a bench trial on December 4, 2008. M.S.C. and E.L.T.
testified concerning the history of their relationship and the events leading up to M.R.C.'s
birth. The records concerning the PFA order were admitted into evidence.
Additionally, M.S.C.'s stepparents testified that they did not have any contact with M.S.C.
during her pregnancy. However, M.S.C.'s stepmother also testified that on one occasion
she sent her younger son down the block to where M.S.C. was residing in February 2008
to give a birthday gift to a child who was staying at the same residence. The stepmother
testified that M.S.C. was living in "some quad apartments" at "45th and Handley" down
the street from one of her girlfriends.

After hearing the evidence, the district court found that E.L.T. provided support
for M.S.C. during only the first 35 days of the last 6 months of her pregnancy, which the
court found to be incidental. The district court determined that under Kansas law, the
duty of the father is not a passive one; it is an active obligation. The district court found
that E.L.T. used the PFA as an excuse for not providing support and he passively
accepted the rumor that M.S.C. had miscarried. The district court concluded there was
clear and convincing evidence that after having knowledge of the pregnancy, E.L.T.
failed without reasonable cause to provide support for M.S.C. during the 6 months prior
to M.R.C.'s birth. Accordingly, the district court terminated E.L.T.'s parental rights to
M.R.C. pursuant to K.S.A. 2008 Supp. 59-2136(h)(1)(D). E.L.T. timely appealed.

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On appeal, E.L.T. claims the district court erred in terminating his parental rights
for failing to support M.S.C. during the 6 months prior to M.R.C.'s birth. E.L.T. does not
contest the district court's finding that he provided support for M.S.C. for only the first 35
days of the last 6 months of her pregnancy. However, E.L.T. maintains that the district
court failed to make sufficient findings that his failure to support M.S.C. was without
reasonable cause. Specifically, E.L.T. maintains that the PFA order prohibiting contact
between the parties and the false information about the miscarriage provided reasonable
cause for his failure to support M.S.C.

An appellate court reviews the district court's decision terminating a person's
parental rights to determine if, after reviewing all the evidence in the light most favorable
to the prevailing party, the district court's factual findings were highly probable, i.e.,
supported by clear and convincing evidence. See In re B.D.-Y., 286 Kan. 686, 697,
705-06, 187 P.3d 594 (2008). In making this determination, an appellate court does not
weigh conflicting evidence, pass on the credibility of witnesses, or redetermine questions
of fact. 286 Kan. at 705.

K.S.A. 2008 Supp. 59-2136(h)(1) provides that a court may terminate a father's
parental rights in the course of a nonstepparent adoption proceeding if it finds by clear
and convincing evidence any of the following:


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"(A) The father abandoned or neglected the child after having
knowledge of the child's birth;

"(B) the father is unfit as a parent or incapable of giving consent;

"(C) the father has made no reasonable efforts to support or
communicate with the child after having knowledge of the child's birth;

"(D) the father, after having knowledge of the pregnancy, failed
without reasonable cause to provide support for the mother during the six
months prior to the child's birth;

"(E) the father abandoned the mother after having knowledge of the
pregnancy;

"(F) the birth of the child was the result of rape of the mother; or

"(G) the father has failed or refused to assume the duties of a parent
for two consecutive years next preceding the filing of the petition."
(Emphasis added.)

Additionally, the district court may consider and weigh the best interests of the child and
may disregard incidental visitations, contacts, communications, or contributions. K.S.A.
2008 Supp. 59-2136(h)(2)(A) and (B). The burden is on the petitioner to prove grounds
for termination of a father's parental rights under K.S.A. 2008 Supp. 59-2136(h). In re
Adoption of D.D.H., 39 Kan. App. 2d 831, 837, 184 P.3d 967 (2008).

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In this case, only K.S.A. 2008 Supp. 59-2136(h)(1)(D) is at issue. Under this
subsection, the court is authorized to terminate the father's parental rights based on clear
and convincing evidence that the father, after having knowledge of the pregnancy, failed
without reasonable cause to provide support for the mother during the 6 months prior to
the child's birth. The term "support" does not include a requirement that the father
provide total support for the mother; however, support that is incidental or
inconsequential in nature is not sufficient. The support must be of some consequence
and reasonable under all the circumstances. Mere general offers of support are not
sufficient. In re Adoption of M.D.K., 30 Kan. App. 2d 1176, 1178, 58 P.3d 745 (2002).

When the district court finds that "'a father's reasonable efforts to provide for his
child's welfare failed because of interference by the mother, adoption agency, or adoptive
parents, the statute should not operate to terminate his parental rights.' [Citation
omitted.]" In re Adoption of Baby Boy S., 22 Kan. App. 2d 119, 130, 912 P.2d 761, rev.
denied 260 Kan. 993, cert. denied 519 U.S. 870 (1996). However, a mother's failure to
act upon a general offer of assistance by not contacting the father and telling him what
she specifically needs does not amount to interference or a refusal of financial help. In
re M.D.K., 30 Kan. App. 2d at 1180. It is not unreasonable to require substantial efforts
by an unwed father to maintain contact with the mother and participate in the pregnancy
and birth. In re Adoption of Baby Girl S., 29 Kan. App. 2d 664, 667, 29 P.3d 466 (2001),
aff'd 273 Kan. 71, 41 P.3d 287 (2002).

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In In re K.D.O., 20 Kan. App. 2d 559, 889 P.2d 1158 (1995), this court upheld a
district court's decision denying an adoption agency's petition to terminate the father's
rights after the father made several, specific offers of support to the mother during the
pregnancy. In that case, except for $100 which the father gave to the mother, the father
did not provide the mother with any support during her pregnancy. However, when the
mother informed the father that she was not going to have an abortion, he told her that he
would support her and the baby. The father offered money to the mother, and he offered
to obtain other items for the baby. The father offered the use of his vehicle if the mother
needed a ride, and he offered to drive the mother to the hospital when the baby was due.
In addition, the father offered to marry the mother and to pay for her divorce from her
present husband. The mother refused all offers of support and refused to let the father
see her. The district court found that although the father failed to provide support to the
mother during her pregnancy, he had a reasonable cause for his failure, namely, the
mother's refusal to accept his offers of support. 20 Kan. App. 2d at 561. On appeal, this
court declined to reweigh the evidence and upheld the district court's decision. 20 Kan.
App. 2d at 562.

In contrast, in In re M.D.K., unwed parents lived apart during the last 6 months of
the pregnancy. During this time, the father's parents bought the mother's car from her for
$245 more than what was owed on the car and they provided her with some blankets and
a picture frame. The father called the mother once a month, which generally made the

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mother upset, and she threatened to obtain a restraining order if he continued to call. The
father provided no monetary or emotional support to the mother during this time in spite
of having a steady income and few expenses. The father testified the mother never asked
him for support because she was living with her parents and everything was going well.
However, the mother testified she never refused support from the father. The father had
also been advised by an attorney that he was not required to pay support without a court
order. Based upon this evidence, the district court terminated the father's parental rights
under K.S.A. 59-2136(h). 30 Kan. App. 2d at 1177.

On appeal, the father asserted that the mother thwarted his attempts to provide
support because she asked him to quit calling her and threatened to obtain a restraining
order against him. This court concluded that the father's argument had no legal merit
because the father had an affirmative duty to provide support to the mother, and he could
have fulfilled that duty without having contact with her. Thus, this court found
substantial competent evidence supported the district court's decision terminating the
father's parental rights. 30 Kan. App. 2d at 1181-82.

In a concurring opinion, Judge Carol A. Beier, now Justice Beier, elaborated on
the duty of the unwed father to provide support during the pregnancy, even in situations
where the mother does not want contact with the father:


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"An unwed man who learns that his unwed sexual partner is pregnant
and intends to [have the baby] has only one way to ensure he can exercise
his parental rights after the birth, regardless of whether the mother intends
to exercise hers: He must relinquish possession and control of a part of his
property or income to the [mother] during the last 6 months of the
pregnancy so that she may use the items or money to support herself or
prepare for the arrival of the child. He must do this regardless of whether
his relationship with the [mother] continues or ends. He must do this
regardless of whether the [mother] is willing to have any type of contact
with him whatsoever or to submit to his emotional or physical control in any
way. . . .

"Even in the most acrimonious of situations, a [father] can fund a
bank account in the [mother's] name. He can have property or money
delivered to the [mother] by a neutral third party. He canBand mustBbe as
creative as necessary in providing material assistance to the [mother] during
the pregnancy and, the law thus assumes, to the child once it is born. He
must not be deterred by the [mother's] lack of romantic interest in him, even
by her outright hostility. If she justifiably or unjustifiably wants him to
stay away, he must respect her wishes but be sure that his support does not
remain equally distant." 30 Kan. App. 2d at 1182-83.

Returning to our facts, although E.L.T. paid rent and provided food and prenatal
vitamins for M.S.C. while she lived with him at the beginning of the pregnancy, all
support ceased when M.S.C. left the residence on December 10, 2007. From that point,
the undisputed evidence showed that E.L.T. provided no support to M.S.C. M.S.C.
exhibited her desire that E.L.T. stay away from her by seeking the PFA order. By the

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express terms of the final PFA order, E.L.T. was prohibited from having any contact with
M.S.C. unless authorized by the court. E.L.T. never attempted to modify the final PFA
order to allow him to have contact with M.S.C. either directly or through a third party.

E.L.T. argues that the final PFA order prevented him from supporting M.S.C.
because he could not contact her during the pregnancy. Although the final PFA order
prevented E.L.T. from contacting M.S.C., the order did not preclude E.L.T. from
supporting M.S.C. during the pregnancy. At the time the district court issued the final
PFA order, E.L.T. knew that M.S.C. was pregnant and that she was unemployed.
Nevertheless, E.L.T. failed to offer any specific assistance, monetary or otherwise, to
assist M.S.C. with the pregnancy. E.L.T. did not attempt to open a bank account for
M.S.C. and he did not try to get money to her through friends or family. Unlike the
mother in In re K.D.O. who repeatedly refused the father's offers of support, M.S.C. never
told E.L.T. that she did not want support from him. The district court appropriately
found that E.L.T. could not utilize the final PFA order, which he had precipitated by his
own abusive conduct, as an excuse for not providing support to M.S.C. during the last 6
months of the pregnancy.

E.L.T. also argues that M.S.C. interfered with his ability to provide support by
failing to correct Jamie's lie about the miscarriage. However, the district court found it

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was unreasonable for E.L.T. to believe the "rumor" about M.S.C.'s miscarriage, especially
in light of M.S.C.'s previous lie that she had miscarried R.T. The district court stated:

"This Court specifically [finds] that [E.L.T.] knew or should have
known that the pregnancy was not terminated. It would have taken very
little effort to have found out. Again, I go back to the case that clearly
states that it is a proactive duty of the father. In this case, therein lies the
problem. When these facts are applied to the law, [E.L.T.] did not take a
proactive stance."

Given the history between E.L.T. and M.S.C., the district court's finding that it was
unreasonable for E.L.T. to believe the rumor about M.S.C.'s miscarriage was supported
by clear and convincing evidence. There was no evidence that M.S.C. told Jamie to lie
to E.L.T. about the miscarriage. Furthermore, E.L.T. took no steps to confirm whether
the information about the miscarriage was true. E.L.T. had regular contact with M.S.C.'s
family in the spring of 2008. Although M.S.C.'s stepparents testified they did not have
contact with her during the pregnancy, the stepmother at least knew how to locate M.S.C.
during this time. It seems clear that E.L.T. could have learned the truth about the alleged
miscarriage had he tried to do so.

Under Kansas case law, a father has a duty to take affirmative action to manifest a
full commitment to parenting responsibilities and to exercise reasonable diligence to
discover whether the mother has lied to him concerning the existence of the child. See In

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re Adoption of A.A.T., 287 Kan. 590, Syl. & 13, 196 P.3d 1180 (2008) (court denied father
rights to child even though mother lied about having abortion). Here, the false statement
about the miscarriage did not excuse E.L.T. from discovering the truth and providing
support to M.S.C. In any case, E.L.T. had already failed to provide support to M.S.C.
for 3 months before he heard about the miscarriage. The evidence is undisputed that
E.L.T. provided no support to M.S.C. between when she left the residence on December
10, 2007, and when he heard about the supposed miscarriage in mid-March 2008.

In summary, we find this case to be very similar to In re M.D.K. Although M.S.C.
did not want E.L.T. to contact her, she never refused any offers of support from him.
E.L.T. provided no monetary or emotional support to M.S.C. during most of the last 6
months of her pregnancy despite having sufficient resources to provide support. E.L.T.
acted passively and he failed to exercise his affirmative duty in order to preserve his
parental rights. The district court's finding that E.L.T. failed without reasonable cause to
provide support for M.S.C. during the 6 months prior to M.R.C.'s birth was supported by
clear and convincing evidence. Accordingly, we conclude the district court did not err in
terminating E.L.T.'s parental rights pursuant to K.S.A. 2008 Supp. 59-2136(h)(1)(D).

Affirmed.